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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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I am an employer who did not have workers comp at the time

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I am an employer who did not have workers' comp at the time of an alleged injury on the job. I have coverage now. However, I have a worker who filed a claim based on an injury he alleges he sustained on the job several years ago(6-7 years). I was never told of his injury and has been more than the 5 years I believe he has to file the claim with the WCAB.

Along the process of the claim he waited several months (5) to decide on a QME and seek treatment. He did not follow through with any treatment, later hired a lawyer who appointed another QME without my consent for a AME because the first QME did not want to continue with the applicant.

It has now been over a year and have not received an updated QME report and the Judge has entered an intention to award the applicant based on stipulations for TD and medical treatments since the date of injury 8-8-11.

I am frustrated and do not know how to follow through with this. I have thus filed or an objection to intent and am expecting a reset of hearing based on not having a written panel QME given to me by the applicants lawyer, sworn statement from an individual who worked with him on the DOI and did not witness any injury to the applicant.

I am afraid at losing this case because I am not a lawyer. The I&A officer has been helpful to a degree. What are my chances???? Any feedback will help.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Is your question regarding your chances on obtaining a reset of hearing, or what your chances would be during the hearing on contesting benefits being awarded to the employee?

Did you bring up the statute of limitations in the hearing?
Customer: replied 4 years ago.

Not yet. The applicant's lawyer has been trying to keep me in the dark. The I & A officer does not think it will help because the applicant says it it hurts him now and he filed for the claim as of 8-8-11.

I think that you should definitely bring up the statute of limitations in arguing against the claim, since that would be your best basis for defeating the claim.

The only time that a person would be exempted from the statute of limtiations would be if he or she can demonstrate that he or she only recently became aware of the injury, which is unlikely if it occured at work. Furthermore, the length of time since the alleged injury and the filing of the claim would give you additional grounds to contest the claim since you can argue that many other things could have caused the injury and that there is not a sufficient causal connection between the injury and work.

Unfortunately, most of the grounds that you mentioned would not be sufficent to reset a hearing, since there is no requirement that there be a witness to the alleged injury or a statement from a co-worker on the day of injury.

If the attorney for the plaintiff violated the rules of discovery by failing to provide you with a copy of the QME report, that may be a sufficient basis, but you will typically need to demonstrate that you requested this information from plaintiff's counsel and he failed to provide you with the information.

Customer: replied 4 years ago.

Joseph, what aboout the delays in having a QME done by the plaintiff? Is there a time frame he has to seek treatment after filing a claim and receiving a list of a panel QME to choose from? Or can he delay and do it at his convenience? What about his lawyer not giving me any opportunity for discussion for an AME? I believe that is within my right???

Unfortunately, no, there is no set time frame for the plaintiff to have a QME.

You definitely should have had an opportunity to discuss and contest the AME, although that should have been done by the court, and it's not the responsibility of the lawyer to facilitate that discussion.

I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate a direct and honest answer to your question.
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